SLAPPing back
Last March — just short of a year ago — the justice secretary Dominic Raab launched what he called “an urgent call for evidence in response to the challenges presented by the increasing use of a form of litigation known collectively as SLAPPs — strategic lawsuits against public participation”. I explained the background at the time.
In July, Raab reported on the response to his consultation and told us that the government was “moving decisively to stamp out SLAPPs”. Since then, silence: we have seen no government legislation, not even in draft. A private member’s bill was introduced under the 10-minute rule in January but this has yet to be published.
Perhaps that’s no surprise. Defining a SLAPP was always going to be difficult. The Ministry of Justice is not at the front of the queue for slots in the legislative timetable.
Meanwhile, journalists continue to call for action. And claimants’ lawyers have started fighting back.
Solicitors Regulation Authority
Enter the regulator. The Solicitors Regulation Authority is better placed than parliament to decide what behaviour is acceptable and what must be beyond the pale. But there must always be a temptation to play up to the sort of populism that saw a parliamentary committee recommend penalties of up to £250 million for law firms and £50 million for individual solicitors.
The regulator issued a warning notice in November which I summarised earlier this year. Before that, it had conducted a thematic review of 25 law firms. A report of its findings was published last month.
This says:
Solicitors are not simply “hired guns”. That means they should not bring cases which are not properly arguable, bring excessive or oppressive proceedings, or act in a way which could mislead or take advantage of others during proceedings. Managing potential conflicts is also an essential element of maintaining legal professional ethics...
We will act where we see serious breaches of our principles and codes of conduct. Solicitors play an important role in reporting matters which they believe are capable of amounting to a serious breach of our rules. This is especially important with SLAPPs, where the purpose of legal threats is often to silence critics or pressure supposedly weaker parties to settle before reaching court, resulting in a fear of speaking out.
Solicitors fight back
Writing in the Law Society Gazette shortly afterwards, a media lawyer argued that “talk of SLAPPS is greatly exaggerated”. Iain Wilson is managing partner of the specialist law firm Brett Wilson. “While we do not act for the mainstream press for conflict reasons,” he explains, “we have acted for journalists, citizen bloggers and the odd newspaper editor, and so I would hope that we are well placed to offer a balanced view.” His firm was one of the 25 media practices reviewed by the Solicitors Regulation Authority (SRA).
Referring to the regulator’s report, he writes:
The report’s headline should have been that, having reviewed 50 files selected at random in a spot audit of every specialist defamation firm, the SRA “did not find any evidence of SLAPPs”. Moreover, the SRA was unable to identify the misuse of the terms “strictly private and confidential”, “not for publication” or “without prejudice”, or more generally any inappropriate correspondence or indeed other misconduct issues.
Did they pick the wrong files to review? Or is it possible that defamation solicitors are already taking their professional and ethical considerations seriously, and the spectre of SLAPPs has been overblown by the media?
Wilson’s article is well worth reading in full. It concludes:
To be clear, where they do exist, SLAPPs are a problem. But their prevalence is overstated and solicitors are unlikely to be complicit in very many. I suspect far less than the number of solicitors stealing client money. It is hardly surprising the SRA is investigating 40 complaints given the publicity the matter has received. If it genuinely intends to redouble its efforts, then there will come a point where every defendant is crying SLAPP and complaining to the SRA. There is a risk of a form of McCarthyism developing. If the regulator is truly independent, it should play no part in this.
We saw some of this McCarthyism in a Times leading article in January:
Even despite strict know-your-client rules and anti-money laundering regulations, lawyers appear to consider themselves uniquely free to act for any client no matter how nefarious, in pursuit of any action no matter how vexatious, on the bogus grounds that they are serving some higher principle. In reality, they are helping to undermine the very institutions upon which democracy and the rule of law depend.
That drew a stinging response from a former Times columnist, Lord Pannick KC:
Your editorial (“Slapp Down”, January 27) on a libel action by a Russian “gangster” suggests that it is “shameful” for barristers and solicitors to act for “dubious clients” and that we should take more notice of our “wider ethical obligations to society”. The primary ethical obligation of lawyers is to the rule of law, which requires that all persons, however “dubious”, have access to legal advice and representation. This applies to alleged murderers, rapists, paedophiles and also to Russians.
There are exceptions to this professional obligation, and rightly so, in particular that we may not assist litigation which we believe to have no reasonable basis or which is being pursued to harass others. But in general, judges, not lawyers, decide whether litigation by clients is well founded. A hard case should not be allowed to undermine these fundamental principles.
Law in Action
On Law in Action, which returns to Radio 4 at 4pm today and will then be available as a podcast on BBC Sounds, I discuss these issues with Richard Moorhead, professor of law and professional ethics at the University of Exeter, and Dan Neidle, former head of tax at Clifford Chance who was himself at the receiving end of what he regards as a SLAPP.
Also, on the programme, I shall be talking to the attorney general, Victoria Prentis KC MP, about her visit to Ukraine at the weekend and the UK government’s support for a tribunal that could bring Russia’s leaders to justice. Other speakers on the programme are the international lawyer Professor Philippe Sands KC and two highly-qualified Ukrainian lawyers who are now working as legal advisers in the UK. Do listen.